In re Estate of Etmund, 297 Neb. 455

Background

Decedent Cora H. Etmund died leaving a will appointing Cheryl A. Brown as personal representative and directing Brown to give the current farm tenant, Norris Talcott, the "first opportunity to purchase" the real estate "under commercially reasonable terms and conditions as he and [my] personal representative may agree."
Brown hired a certified appraiser who valued the property for agricultural use at $785,859; Brown negotiated a sale to Talcott for $900,000 and executed a purchase agreement.
Devisees (petitioners) disputed the price, retained their own appraiser who valued the property at $1,457,000 based on a highest-and-best-use residential development analysis, and petitioned to restrain closing and to remove Brown as personal representative under Neb. Rev. Stat. § 30-2454.
The county court temporarily restrained Brown from closing, allowed petitioners time to investigate, heard competing appraisal testimony, found Brown’s appraiser more credible, and denied removal and other requested relief.
On appeal, the Nebraska Supreme Court reviewed whether Brown failed to sell under the will’s requirement of "commercially reasonable" terms and whether she was removable for mismanagement in hiring or relying on her appraiser.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether "commercially reasonable terms" required sale at highest-and-best-use (residential development) value	Petitioners: "Commercially reasonable" requires valuing land at its highest and best use (residential development) so $900,000 was unreasonably low	Brown: Will grants discretion and directs offer first to tenant; term contemplates negotiation with tenant and does not mandate highest-and-best-use pricing	Court: "Commercially reasonable" is not ambiguous here; in context it refers to terms negotiated with the farm tenant; sale was commercially reasonable and not clearly erroneous
Whether Brown should be removed for hiring an appraiser who disclaimed competence to value development land	Petitioners: Appraiser admitted he could not appraise development use, so Brown acted unreasonably and mismanaged the estate	Brown: Appraiser was a licensed, experienced general certified appraiser who properly valued the property for agricultural use; personal representative may rely on qualified advisers	Court: Brown acted within broad discretion in will, law permits reliance on qualified appraiser; no cause to remove her
Whether the lower court erred in weighing competing appraisals and witness credibility	Petitioners: County court should have found petitioners’ appraisal credible and that sale jeopardized estate	Brown: Trial court was sole judge of credibility; its factual findings should stand	Court: Appellate court will not reweigh credibility; county court’s factual findings were supported and not clearly erroneous
Whether statutory duties required a different course of action by Brown in selling the property	Petitioners: § 30‑2464 duty to settle and distribute requires maximizing value	Brown: § 30‑2476 and § 30‑2468 authorize employing advisors and relying on qualified appraiser; will gives broad discretion	Court: Statutes permit Brown’s conduct; she acted reasonably for the estate’s benefit

Key Cases Cited

In re Estate of Nemetz, 273 Neb. 918 (discussing valuation and highest-and-best-use in probate context)
In re Estate of Shell, 290 Neb. 791 (interpretation of will language and executor duties)
In re Estate of Webb, 20 Neb. App. 12 (prior probate removal/valuation context cited by parties)
Chadron Energy Corp. v. First Nat. Bank, 236 Neb. 173 (sale reasonableness under UCC is a question of fact)
Eicher v. Mid America Fin. Invest. Corp., 275 Neb. 462 (appellate review deference to trial court credibility findings)
In re Estate of Ritter, 227 Neb. 641 (rules for construing testator intent and will language)
Reeves v. Associates Financial Services Co., Inc., 197 Neb. 107 (authority cited concerning valuation disputes)